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Department of Justice
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
bon.rtL C t1AA)
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Guendelsberger, John
Malphrus, Garry D.
Pauley, Roger
Usertea m: Docket
Cite as: Deivis Rene Aguilar, A055 815 373 (BIA Jan. 30, 2017)
U.S. Department of Justice
Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.
Sincerely,
DQnftL CtViAJ
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Guendelsberger, John
Malphrus, Garry D.
Pauley, Roger
Userteam:
Cite as: Deivis Rene Aguilar, A055 815 373 (BIA Jan. 30, 2017)
U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review
CERTIFICATION
CHARGE:
On January 20, 2016, this Board remanded the record to the Immigration Judge as his
original decision, dated September 2, 2015, ordering the respondent's removal from the United
States, did not contain sufficient analysis and fact finding. On February 18, 2016, the
Immigration Judge issued a new decision setting forth the reasons for his decision. The
respondent's appeal will be dismissed and the Immigration Judge's decision will be affirmed.
We review Immigration Judges' findings of fact for clear error. 8 C.F.R. I003.l(d)(3)(i).
We review questions of law, discretion, and judgment, and all other issues in appeals de novo.
8 C.F.R. I003.l(d)(3)(ii).
The respondent, a native and citizen of El Salvador, was previously admitted to the United
States as a lawful permanent resident. The Department of Homeland Security ("OHS") charges
that the respondent is subject to removal from the United States as his District of Columbia
conviction for Misdemeanor Sexual Abuse of a Minor or Child constitutes a conviction for a
sexual abuse aggravated felony. Sections 101(a)(43)(A), 237(a)(2)(A)(iii) of the Immigration
and Nationality Act, 8 U.S.C. l 101(a)(43)(A), 1227(a)(2)(A)(iii).
Whoever, being 18 years of age or older and more than 4 years older than a child,
or being 18 years of age or older and being in a significant relationship with a
minor, engages in sexually suggestive conduct with that child or minor shall be
imprisoned for not more than 180 days, or fined not more than the amount set
forth in [D.C. CODE ] 22-3571.01, or both.
Cite as: Deivis Rene Aguilar, A055 815 373 (BIA Jan. 30, 2017)
A055 815,373
Under D.C. CODE 22-3010.0l(a), where the victim and the perpetrator share a "significant
relationship," the statute does not require the showing of a meaningful age differential between
the perpetrator and the minor victim. The term "significant relationship" includes a parent,
sibling, aunt, uncle, or grandparent, whether related by blood, marriage, domestic partnership, or
adoption. D.C. CODE 22-3001(10). In many instances, the "significant relationship" will
involve an inherently coercive nature and the potential for exploitation. Nonetheless, given that
the District of Colombia also provides for criminal penalties under D.C. CODE 22-3010.0l(a)
where the victim was the minor sibling of the perpetrator, such offense would not necessarily
involve such inherently coercive nature and the potential for exploitation. For example, D.C.
CODE 22-3010.0l(a) could provide criminal punishment where an 18-year old engaged in
sexually suggestive conduct with his 17-year old stepsister. We must carry out the congressional
intent to impose immigration consequences on those who have been convicted of sexual abuse of
a minor without including nonabusive consensual sexual intercourse between older adolescent
peers. Matter of Esquivel-Quintana, supra at 476. Overall, considering the breadth of conduct
prohibited by D.C. CODE 22-3010.0l(a), we agree with the respondent that his conviction
does not categorically constitute a conviction for a sexual abuse of a minor aggravated felony.
We conclude, however, that D.C. CODE. 22-3010.0l(a) is divisible between offenses which
involve an offender "18 years of age or older and more than 4 years older than a child" and
"being 18 years of age or older and being in a significant relationship with a minor." As held by
the Immigration Judge, ''these are not simply alternative means for convicting someone of sexual
abuse of a minor or child; rather, they are factual circumstances that create alternative elements
of the crime-thus essentially dividing the DC Statute into two separate crimes" (1.J. at 2).
A statute is divisible when it "lists multiple, alternative elements, and so effectively creates
'several different . . . crimes."' Descamps v. United States, 133 S.Ct. 2276, 2285 (2013). To
determine whether the District of Columbia statute contains alternative elements, we first
"examine the relevant statutory language and interpretations of that language by the state's
highest court." United States v. Mungro, 754 F.3d 267, 269 (4th Cir. 2014). Additionally, "we
consider how [District of Columbia] courts generally instruct juries with respect to that offense."
United States v. Royal, 731 F.3d 333, 341 (4th Cir. 2013). "[A]n indictment and jury instructions
could indicate, by referencing one alternative term to the exclusion of all others, that the statute
contains a list of elements, each one of which goes toward a separate crime." Mathis v. United
States, 136 S. Ct. 2243, 2256 (2016).
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Cite as: Deivis Rene Aguilar, A055 815 373 (BIA Jan. 30, 2017)
A055 815,373
A review of District of Columbia case law does not reveal any specific authority which states
whether D.C. CODE. 22-3010.0l(a) contains separate elements with respect to the relationship
between the victim and the perpetrator. Likewise, D.C. CODE. 22-3010.0l(a) does not have
specific jury instructions. Nonetheless, we conclude that the criminal jury instructions for
Enticing a Child or Minor in violation of D.C. CODE. 22-3010(a) are persuasive. Like D.C.
A review of the charge in the Amended Information, to which the respondent was found
guilty, further supports a holding that D.C. CODE. 22-3010.0l{a) is divisible. The charge
explicitly alleged that the respondent, being 18 years or older and being more than 4 years older
than his victim, a child under 16 years of age, engaged in sexually suggestive conduct "with that
child" (Exh. R). Thus, this is not a case where a charging document reiterated all the terms of
District of Colombia law. The Amended Information made no reference to a possible alternative
means of committing the offense, i.e., being in a significant relationship with his victim, a minor,
and engaging in sexually suggestive conduct with that minor.
Considering the jury instructions for the related offense of Enticing a Child or Minor and the
Amended Information, we conclude that Misdemeanor Sexual Abuse of a Minor or Child in
violation of D.C. CODE. 22-3010.0l(a) has two separate elements which must be proven by the
District. The District must establish either (I) that, at the time of the offense, the complainant
was a child (i.e., a person less than 16 years of age) and the defendant was more than 4 years
older than the complainant or (2) that, at the time of the offense, the complainant was a minor
(i.e., less than 18 years of age) and the defendant was in a significant relationship with the
complainant. In tum, inasmuch as the respondent was convicted of his offense as charged in the
Amended Information, the record establishes that he was convicted of the "child" as opposed to
the "minor" elements of D.C. CODE. 22-3010.0l(a). "[I]t is clear that the respondent was over
the age of 18 and was more than four years older than the victim, who was under the age of 16"
(I.J. at 2).
Applying the modified categorical approach, we conclude that the respondent's conviction
constitutes a conviction for sexual abuse of a minor as defined under section I0l(a)(43)(A) of
the Act. In order to sustain the conviction, the District was required to establish that the
respondent (1) was 18 years of age or older and more than 4 years older than a child, a person
who has not yet attained the age of 16 years, and (2) engaged in sexually suggestive conduct with
3
Cite as: Deivis Rene Aguilar, A055 815 373 (BIA Jan. 30, 2017)
A055 815,373
that child. D.C. CODE. 22-3010.0l(a); see also D.C. CODE. 22-3001(3) (defining the term
"child"). Under the Act, "sexual abuse of a minor" means the "perpetrator's physical or
nonphysical misuse or maltreatment of a minor for a purpose associated with sexual
gratification." Larios-Reyes v. Lynch, 843 F.3d 146, 159 (4th Cir. 2016).
As the respondent discusses in his supplementai brief, the District was not necessarily
We are also not persuaded that D.C. CODE. 22-3010.0l(a) is broader than the Act's
definition of sexual abuse of a minor as the offense can be committed with the intention of
causing or reasonably causing sexual arousal, as opposed to only sexual gratification, of any
person. While we have considered that sexual arousal and sexual gratification may carry distinct
definitions, we are not persuaded that the District of Columbia Courts would define sexual
arousal in a manner which is not "associated with sexual gratification." Larios-Reyes v. Lynch,
supra, at 159. The applicant has not provided any plausible instance where one could commit
the proscribed offense for purposes of sexual arousal in a manner which is not "associated with
sexual gratification."
We disagree with the respondent's argument that D.C. CODE. 22-3010.0l(a) does not
contain a sufficient mental state. In order to convict a defendant of a violation of D.C. CODE.
22-3010.0l(a), the District must, as discussed above, establish that the defendant engaged in
"sexually suggestive conduct," which, in turn, required a showing that the act was committed
with the intent to cause or reasonably cause the sexual arousal or sexual gratification of any
person. D.C. CODE. 22-3010.0l(b). As such, the respondent's claim that a defendant can
unknowingly commit a violation of D.C. CODE. 22-3010.0l(a) is without merit. As expressed
by the DHS in its response to the respondent's supplemental brief, an act done intentionally
1
The term "sexually suggestive conduct" means engaging in any of the following acts in a way
which is intended to cause or reasonably causes the sexual arousal or sexual gratification of any
person: (1) Touching a child or minor inside his or her clothing; (2) Touching a child or minor
inside or outside his or her clothing close to the genitalia, anus, breast, or buttocks; (3) Placing
one's tongue in the mouth of the child or minor; or (4) Touching one's own genitalia or that of a
third person. D.C. CODE. 22-3010.0l(b).
4
Cite as: Deivis Rene Aguilar, A055 815 373 (BIA Jan. 30, 2017)
A055 815 373
which reasonably causes sexual arousal or gratification is an act done for a purpose associated
with sexual gratification, the standard announced in Larios-Reyes v. Lynch.
Ultimately, all of the conduct which falls within the scope of "sexually suggestive conduct,"
as defined by D.C. CODE. 22-3010.0l(b), meets the definition of sexual abuse of a minor. See
Larios-Reyes v. Lynch, supra, at 160 (recognizing that "sexual abuse of a minor" is a "broad
ORDER: The Inunigration Judge's decision is affirmed and the respondent's appeal is
dismissed.
5
Cite as: Deivis Rene Aguilar, A055 815 373 (BIA Jan. 30, 2017)
.'
.
In the Matter of
)
DEIVIS RENE AGUILAR ) IN REMOVAL PROCEEDINGS
)
RESPONDENT )
1
Moreover, I believe the DC Statute meets the Board of Immigration Appeals
requirement that there exist a meaningful age differential between the victim and the
years or older and more than four years older than the child victim would clearly meet
Security's brief that even the other provision of the statute, which covers a perpetrator
1 8 years or older who is in a significant relationship with a minor victim, also meets the
meaningful age differential requirement intended by the Board . Perpetrators in a
relationships of authority and trust with the victim and thus involve an i nherent risk of
in actual age in virtually every case - and certainly in every case in which the statute is
divisible. The DC Statute establishes two separate versions of sexual abuse of a minor
or child. One covers adults at least four years older than the child victim; the other
covers adults in a significant relationship with the minor victim. These are not simply
alternative means for convicting someone of sexual abuse of a minor or child; rather,
they are factual circumstances that create alternative elements of the crime - thus
conviction, it is clear that the respondent was over the age of 1 8 and was more than
four years older than the victim , who was under the age of 1 6. Thus, the meaningful
age difference clearly existed and the respondent was convicted of "sexual abuse of a
minor''. I believe that the Fourth Circuit cases cited by the respondent ( eg. Omarqharib
and Royal) are distinguishable from this case and this statute.
ORDERS
Thus, in the absence of any application for relief, given the sustained charge, the